11-3108-ag BIA
Shcherbenko v. Holder Vomacka, IJ
A089 250 256
A089 250 257
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of June, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 NATALIA SHCHERBENKO, MERVAN SULEYMAN
14 KIZGIN,
15 Petitioners,
16
17 v. 11-3108-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: H. Raymond Fasano, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Benjamin J. Zeitlin, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Natalia Shcherbenko, a native of Kazakhstan
6 and citizen of Russia, and her husband Mervan Suleyman
7 Kizgin, a native and citizen of Turkey, seek review of a
8 July 13, 2011, order of the BIA, affirming the November 13,
9 2009, decision of Immigration Judge (“IJ”) Alan Vomacka,
10 denying their application for asylum, withholding of
11 removal, and relief under the Convention Against Torture
12 (“CAT”). In re Natalia Shcherbenko, Mervan Suleyman Kizgin,
13 Nos. A089 250 256/257 (B.I.A. July 13, 2011), aff’g Nos.
14 A089 250 256/257 (Immig. Ct. N.Y. City Nov. 31, 2009). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 both the BIA’s and IJ’s opinions, including the portions of
19 the IJ’s decision not explicitly discussed by the BIA.
20 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
21 The applicable standards of review are well-established.
22 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
23 F.3d 510, 513 (2d Cir. 2009). For an application like
2
1 Petitioners’, governed by the REAL ID Act of 2005, the
2 agency may, considering the totality of the circumstances,
3 base a credibility finding on an asylum applicant’s
4 demeanor, the plausibility of her account, and
5 inconsistencies in her statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec.
8 260, 265 (B.I.A. 2007). Analyzed under the REAL ID Act, the
9 agency’s adverse credibility determination is supported by
10 substantial evidence.
11 In finding Shcherbenko not credible, the agency
12 reasonably relied on the omission of her August 2005
13 attackers’ identity from her asylum statement. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
15 162, 166 (2d Cir. 2008) (providing that, for purposes of
16 analyzing a credibility determination, “[a]n inconsistency
17 and an omission are . . . functionally equivalent”). As the
18 agency noted, Shcherbenko testified that members of the
19 Russian Nationality Unity Party (“RNU”) attacked a baptism
20 ceremony in August 2005 but did not indicate that the
21 attackers were RNU members in her asylum statement. While
22 this omission does not necessarily go to the heart of
3
1 Shcherbenko’s claim, it was nevertheless a proper basis for
2 the agency’s adverse credibility determination. See Xiu Xia
3 Lin, 534 F.3d at 167 (holding that “an IJ may rely on any
4 inconsistency or omission in making an adverse credibility
5 determination as long as the ‘totality of the circumstances’
6 establishes that an asylum applicant is not credible”
7 (emphasis in original)).
8 The IJ also reasonably relied on inconsistencies
9 between Shcherbenko’s testimony and her friends’ and
10 pastor’s letters in finding her not credible. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii). As the agency noted, Shcherbenko
12 testified that she and her friends Nina, Olga, and Alexis (a
13 male) were attacked in March 2007 by orthodox extremists
14 with a bicycle chain; Nina’s letter, however, failed to
15 mention the incident, Olga’s letter did not mention a
16 bicycle chain, Shcherbenko’s pastor’s letter referred only
17 to girls being present, and Maria’s letter indicated that
18 she was also present. Although Shcherbenko argues that
19 Olga’s failure to mention the bicycle chain in the attack
20 and her pastor’s reference to only girls being present do
21 not constitute inconsistences, where, as here, the agency’s
22 inference “is tethered to the evidentiary record, we will
4
1 accord deference to the finding.” See Siewe v. Gonzales,
2 480 F.3d 160, 168-69 (2d Cir. 2007) (noting that “support
3 for a contrary inference-even one more plausible or more
4 natural-does not suggest error”). Moreover, Shcherbenko
5 fails to address Nina’s omission of the attack from her
6 letter, Maria’s statement that she was present during the
7 2007 incident, or the additional inconsistency between
8 Shcherbenko’s testimony and her pastor’s letter regarding
9 whether gunshots were fired, which in itself stands as a
10 valid basis for finding that the agency’s adverse
11 credibility determination is supported by substantial
12 evidence. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
13 n.1, 545 n.7 (2d Cir. 2005) (“Issues not sufficiently argued
14 in the briefs are considered waived and normally will not be
15 addressed on appeal.” (internal quotation marks omitted));
16 see also 8 U.S.C. § 1158(b)(1)(B)(iii).
17 Having found Shcherbenko not credible, the agency
18 reasonably noted that her failure to provide corroborating
19 evidence further undermined her credibility. See 8 U.S.C.
20 § 1158(b)(1)(B)(ii) (providing that “[t]he testimony of the
21 applicant may be sufficient to sustain the applicant’s
22 burden without corroboration, but only if the applicant
23 satisfies the trier of fact that the applicant’s testimony
5
1 is credible, is persuasive, and refers to specific facts
2 sufficient to demonstrate that the applicant is a refugee”).
3 We have recognized that an applicant’s failure to
4 corroborate her testimony may bear on credibility, either
5 because the absence of particular corroborating evidence is
6 viewed as suspicious, or because the absence of
7 corroboration in general makes an applicant unable to
8 rehabilitate testimony that has already been called into
9 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
10 Cir. 2007) (per curiam). Here, the agency reasonably relied
11 on Shcherbenko’s failure to present corroborating evidence
12 regarding her church attendance in the U.S and her medical
13 and dental treatments in Russia. While Shcherbenko
14 testified that her mother was unable to obtain her dental
15 records in Russia, which were only kept for one year, the IJ
16 reasonably found her explanation unconvincing because her
17 mother’s letter made no reference to any attempt to obtain
18 the records. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
19 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
20 afforded to the applicant’s evidence in immigration
21 proceedings lies largely within the discretion of the
22 agency). Cf. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
23 2005) (holding that an agency need not credit an applicant’s
6
1 explanations for inconsistencies in the record unless those
2 explanations would compel a reasonable fact-finder to do
3 so).
4 Although Shcherbenko contends that the BIA erred by
5 failing to assess whether her allegations of past
6 mistreatment, if credible, rose to the level of persecution,
7 the agency had no obligation to do so given the adverse
8 credibility determination. INS v. Bagamasbad, 429 U.S. 24,
9 25 (1976) (“[a]s a general rule courts and agencies are not
10 required to make findings on issues the decision of which is
11 unnecessary to the results they reach”). Lastly,
12 Shcherbenko’s argument that the agency placed excessive
13 reliance on the U.S. Department of State reports is
14 misplaced. A review of the record does not reflect that the
15 agency relied excessively on the State Department reports or
16 ignored any contrary evidence, particularly given the IJ’s
17 extensive discussion of the evidence and explicit statement
18 that he had read through all of the country conditions
19 evidence. See Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d
20 Cir. 2004); see also Xiao Ji Chen, 471 F.3d at 337 n.17
21 (presuming that the agency “has taken into account all of
22 the evidence before [it], unless the record compellingly
23 suggests otherwise”).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
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8